that moment, as judge Chase very justly observes, (3 Dall. 224,) “Virginia was a free, sovereign and independent state." Nay, this learned judge goes farther, and expressly says of the declaration of independence itself, that "he considered it as a declaration not that the United Colonies

jointly in a collective capacity were independent states, but that each of them was a sovereign and independent state; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth.”(y)

So.

But our learned author seems to conceive that he settles the question by saying, that "the declaration was the united act of all;"-" that it was the act of the whole people of the United Colonies, exercising original inherent sovereignty, resulting from their right to change the form of government," &c. But the question is, in what character was it the united act of all? It was in their character of separate communities, dependent on each other only so far as common danger and their own consent had made them It was the act, indeed, of all America; but not as forming one nation, but as separate communities, all uniting in the common object of securing sovereignty, and independence to each. How did they vote? Not by individuals, as representing parts of one whole, but by states, as representing separate communities. If any one state had refused to concur in the declaration, the vote of all the rest could not have bound her. Delaware could no more have been included if she had declined to assent, than Canada or Vermont, who did not send delegates to the body. It was then the joint act, indeed, of the United Colonies, but it was the joint act of communities independent of each other, and uniting in one common measure for the benefit of each. And this seems to have been the understanding of those who had themselves been actors in the stirring scenes of the revolution. It is distinctly avowed in the Federalist, (p. 213,) a work which we all know was published but a few years after the close of the war, and came from the hands of some of our wisest and purest pa

(y) The case of Vermont was peculiar. She had no representative in the congress which declared independence, though she joined her arms with ours. She declared her own independence

in 1777.

triots, least liable to be biassed in favour of the sovereignty of the states. One of its authors, too, at a future day, from the elevated station of the supreme court, distinctly declared, "that by the declaration of independence thirteen sovereignties were considered as emerged from the principles of the revolution;" so that reason and authority concur in rejecting the conclusions of our author.

It is to be regretted that in a work intended for the instruction of our youth, any passage should occur which is calculated to mislead, or may be regarded as a sophism. An instance, however, is found in that which we have been examining. Our author says, a declaration of independence was an act not competent to the state governments, as organized under their charters, to adopt." (p. 198.) This is, indeed, undeniable. Their charters did not authorize them to adopt such a measure; but what was there to prevent the "original inherent sovereignty of the people" themselves in each state from such adoption. It was the right of revolution which belonged to each of the separate communities, as much as to the whole, and which each might assert independent of the others. It was this right of each, which, in general congress, was asserted by the whole, for the benefit of each, and in that sense only for the benefit of the whole. With these views, I look upon the positions of judge Story, and the ipse dixits of Mr. Pinckney and Mr. Adams, on whose authority he relies, as heretical and false, as I am equally well assured they are dangerous and pernicious.

If, indeed, there could be any doubt that thirteen independent communities sprung into existence with the declaration of independence, that doubt would be removed, by the manner in which the states themselves, looked upon their position. Their view of the matter is distinctly disclosed in the articles of confederation. Those articles profess to be between the states of New Hampshire, Massachusetts, &c. [naming each state in the confederacy.] They profess to be articles of confederation, (a term only applicable to an association of states) and perpetual union, which implies an anterior state in which there was no such union. And such was the fact; for until that confederation, the congress of the United States constituted only a revolutionary government, not regularly organized, but ex

isting by tacit consent and acquiescence of the several states, who coalesced and acted in concert from a sense of common danger. There was between them no express agreement. The confederation was, therefore, intended to bind together the states, who were, till then, unbound; and to unite those who had never before been united, but by the bond of common safety. But in its very formation, they were careful to retain that which to every nation is sweet-its sovereignty and independence. The style of the confederacy was the United States of America, a name which very plainly indicates the union of political bodies, and not the oneness of a single republic. But to place the matter beyond question, the second section is devoted to the declaration "that EACH state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in congress assembled." They not only declare, that thenceforth EACH state shall be held to be sovereign and independent, but they avow their anterior independence and sovereignty, by the declaration that they retained them. They could not retain that which they had not before enjoyed. Nay, more;-EACH state in making this declaration, uno flatu, asserts its own rights, and recognizes the rights of others. EACH, therefore, recognized the anterior sovereignty and independence of every other.

It is much to be regretted that our distinguished author has no where, (so far as I can discover) in the examination of the question of the independence of the states, thought fit to present us with his views of the effect of these articles in throwing light upon the matter. Had he done so, we may hope that he would never have arrived at the conclusion which he gives in the language of Mr. Pinckney, that "the separate independence and individual sovereignty of the several states were NEVER THOUGHT OF by the enlightened band of patriots who framed the declaration." Now it happens that Hancock, Adams and Gerry from Massachusetts, Ellery from Rhode Island, Sherman, Huntingdon and Wolcott from Connecticut, Lewis from New York, Witherspoon from Jersey, Robert Morris from Pennsylvania, Thomas M'Kean from Delaware, Carroll from Maryland, the two Lees from Virginia, Penn from North Caro

lina, and Hayward from South Carolina, who signed the declaration of independence, were signers of the confederation in which the sovereignty of each was declared to be retained; and we have already seen the opinion of judge Chase, another signer of the declaration, of his views of the same interesting matter. I feel myself, therefore, justified in repelling the position, that "the separate independence and individual sovereignty of the several states, were never thought of by the patriot signers of the declaration of independence.

It is also to be regretted that the able commentator, in citing judicial opinions in confirmation of his views, has given us, among others, the portion of judge Chase's opinion in Ware v. Hylton, 3 Dall. p. 231, which is least at variance with his own theories, and has omitted to present to the student the strong remarks of that able judge in conflict with his own views. In these, as we have already seen, he declares, that he considers the declaration of independence (which he himself had signed,) "as a declaration NOT that the United States jointly, in a collective capacity, were independent states, but that Each of them was a sovereign and independent state." It would, also, have been deeply interesting to his readers to have learned, that Mr. Marshall (afterwards chief justice), was of counsel in that cause, and strenuously maintained the independence and sovereignty of Virginia in 1777; a position in irreconcilable conflict with the opinions of the commen

tator.

LECTURE IV.

From what has been advanced, I hope the separate sovereignties of the states upon the adoption of the declaration of independence, is sufficiently apparent. I have devoted more time to these investigations, because the opposite opinion has been so industriously maintained by an able writer, obviously with the view of influencing certain great political questions which have arisen under our constitution. If, indeed, judge Story means nothing more than that the revolutionary congress, both before and after the declaration of independence, exercised large powers by the acquiescence and consent of the states, in relation to national concerns, there could be no difference between us. The matter of fact is beyond question. But judge Story seems to be of opinion that the states were not sovereign during this period, but that the sovereignty was in the general government, and that the people were one. (a) Those on the other hand who maintain the rights of the states, regard the sovereignty as having existed and continued in the states, though the exercise of certain powers in relation to foreign concerns was permitted by them on the part of congress. But this very permission, this acquiescence and tacit consent so frequently spoken of by the commentator, is itself decisive of state supremacy. Congress had no power but by state acquiescence. In whom then was the sovereignty? In those assuredly who gave the authority to the general government, and without whose assent that authority could not exist. Such is the case in every league, where powers are vested in a general council, for the conduct of the foreign affairs of the associated nations. Such was the case in our own confederacy, in which, as we have seen, very large powers were given, but the "freedom, sovereignty and independence" of

(a) He quotes too, with apparent acquiescence, the extravagances of Mr. Dane, which it might well have been hoped would have found no place save in his own pages. Judge Story has transplanted them into his. They are hereafter adverted to.